The Legal Conflicts, the Legislative Vacancies and the Legislative Lags in the Chinese Environmental Legal System

The inconsistency and disharmony in China’s environmental legal system are seriously undermining the authority and effectiveness of environmental laws, making it hard to achieve the national environmental legislative goals. It is found in this study that at least 18 administrative regulations and rules conflict with the five recently-revised environmental laws. The legislative vacancy rate of province-level environmental laws reaches 27.8%, and that of city-level environmental laws in the major cities reaches 59.7%. Besides, 66% of the local including both province-level and city-level environmental laws have the problem of legislative lags, with an average lag of 2547.8 days. In addition, there are many legal conflicts between national environmental laws and local environmental laws. In order to help China to build a harmonious and uni-fied environmental legal system, some suggestions are proposed in this study, including comprehensively examining the lower-level environmental laws, strengthening the leading role of local people’s congresses in environmental legislation, improving the construction of filing and review mechanism, and optimizing the mechanisms for information disclosure and public participation.

tal laws based upon the empirical analyses on the status quo of several provinces or a certain province. Zeng (2015) proposed that the problems existing in China's local environmental laws mainly include the low legislative authority, the local protectionism and the absence of public participation. Wan (2018) pointed out through an empirical analysis that the overlapping local laws, the lack of local characteristics, the legal conflicts, and the unscientific punishment system weakened the effectiveness of local environmental laws. Li and Sheng (2018) analyzed the relationship between local environmental laws and the efficiency of industrial resource allocation in the manufacturing industry. They concluded that such a relationship has the function of optimizing resource allocation. Li (2016) argued that the current local environmental laws still have many problems, such as the low quality of local laws, the legislative lags, the departmental and local protectionism, and the imperfect legislative procedures. Wang (2010) took Henan Province, Shanxi Province, Hubei Province, Anhui Province, Hunan Province and Jiangxi Province as examples, and identified a negative correlation between the GDP growth and the yearly number of the revisions (and abolitions) of local environmental laws. Some researchers focused on the local environmental laws in a specific province, such as Shanxi province (Li, 2014), Jiang-su province (Zang, 2015), Guangdong province (Li, 2017), Hebei province (Yang, 2010), Liaoning province (Jin, 2011), Guangxi Zhuang autonomous region (Jiang & Liang, 2008), and Shandong province (Wang & Wang, 2018), etc.
All studies on a specific province found and highlighted the legal conflicts, the legislative vacancies and legislative lags existing in China's local environmental laws.
Meanwhile, many studies attached importance to the relationship and conflicts between national environmental laws and local environmental laws. Feng (2016) argued that, in reality, the local legislatures had the problems such as the lack of legislative experts, the insufficient legislative mechanism, the absence of public participation, and the severe local protectionism, etc. Zhou (2018) argued that there were some defects in the allocation of legislative powers related to environmental protection between national and local legislatures at present, causing problems such as the over lapping local laws, the legislative lags, and the legal conflicts. The above studies conclusively presented the legal conflicts and the legislative lags between national environmental laws and local environmental laws.
In addition, this view is supported by some comparative studies on Chinese local environmental laws and foreign local environmental laws.  conducted a comparative study on the local environmental laws between China and the United States. He argued that China's local environmental legislation still remained at a relatively primary stage in contrast with the United States'. Guo and Huang (2005) compared the local environmental laws between China and Australia and found that Australia's local laws in were more specific and operational than China's. Wang (2014)  and France. Yuan (2018) compared the laws related to the environmental information disclosure between the Chinese and European governments and concluded that China should learn from the EU. Collectively, these studies outlined that Chinese environmental legal systems were far behind those in western countries, and one of the major reasons was the inconsistency.
However, none of the studies reviewed above ever investigated the inconsistency of China's environmental legal system from a holistic perspective. For this reason, this article attempts to reveal the disharmony in China's environmental legal system and propose suggestions based on the comprehensive analysis of 30environmental and natural resource laws, 45 environmental administrative regulations, 85 environmental administrative rules, and 2908 environmental local decrees, local rules, autonomous decrees and special decrees. The first section briefly introduces China's existing environmental legal system. The second section discusses the legal conflicts between the recently-revised national environmental laws and the lower environmental administrative regulations and rules.

The third section discusses the legislative vacancies and the legislative lags in
China's local environmental laws. The fourth section discusses the legal conflicts between national environmental laws and local laws. It should be pointed out that the inconsistency is not the only reason for the invalidation of China's environmental legal system. As many studies have pointed out, the one-party dictatorship of the CPC, the unscientific environmental legislative procedure at the national level, the lack of environmental awareness in local governments, and the absence of an effective environmental litigation system are also important reasons for China's increasingly serious environmental problems (Xu & Faure 2016).

Overview of the Chinese Environmental Legal System
In September 1979, the 11 th NPC promulgated Environmental Protection Law (Trial), marking the beginning of the construction of China's environmental legal system. From 1979 onwards, the development of environmental law in China can be divided into three stages. The first stage started with the promulgation of Environmental Protection Law (trial) in 1979 and ended with the enforcement of Environmental Protection Law in 1989, marking the gradual formation of the Chinese environmental legal system. During this period, China promulgated a number of special environmental laws, such as Marine Environmental Protection Law (1982), Law on Prevention and Control of Water Pollution (1984), Forest Law (1984), Law on the Prevention and Control of Atmospheric Pollution (1987), and Environmental Protection Law (1989 Environmental Protection Law, comprehensively amended in 2014, has included "protect the public health" as a general principle (Article 1), and widened standing for environmental public interest litigation (Article 58). In addition, the environment has become a general principle for civil activities, with Article 9 of the General Rules of the Civil Law, enacted in 2017, stating that "any civil activity conducted by civil subjects shall be conducive to saving resources and protecting the ecological environment." During this period, a progress has been made through the interaction of legislation and revisions, building up a consistent and cohesive framework to tackle the environmental problem.
China's current environmental legal system is based on Environmental Protection Law, including the special laws about environmental pollution control, ecological conservation, resources, energy conservation and recycling, environmental damage liability, environmental impact assessments and other spheres.
In addition to international treaties, China's environmental legal system can be divided into national environmental laws and local environmental laws; the former includes environmental laws promulgated by the NPC or its standing committee, administrative regulations promulgated by the State Council, and administrative rules promulgated by ministries and commissions; the latter includes local decrees, autonomous decrees and special decrees issued by local people's congresses, local rules issued by local governments.
So far the Ministry of Ecology and Environment and the legislative branches have not clarified the scope and directory of China's environmental legal system except the directory of environmental administrative rules. This article argues that a law can be classified into the environmental legal system if it follows two principles. On the one hand, its legislative purposes should be in accordance with Article 1 of Environmental Protection Law, "protecting and improving the environment" and "preventing pollution and other public hazards". On the other hand, its legal interests should be mainly the "environmental benefits". Besides, given that the natural resources laws are closely related to environmental laws, the two are generally referred to as the environmental legal system in a broad sense or "the environmental and natural resources legal system". Based on the two principles above, this article has found that China's environmental (and natural resources) legal system includes 30 laws, 45 administrative regulations,

Synopsis of China's National Environmental Laws
China's national environmental laws in force include 29 national laws, 45 administrative regulations, and 85 administrative rules. As shown in Table 2, the NPC and its standing committee has promulgated 10 natural resources laws. From 1 January, 2013, to 31 December, the 10 laws were cited in 118,327 related judgments (average 23,665 judgments per year).
The most cited one is Land Administration Law, with 84,913 judgments. The number of natural resource cases is far higher than that of environmental protection cases, indicating that the current focus of environmental justice is on the utilization rather than protection.
1 How do we know the number of judgements of an environmental law? Firstly, go to "China judgements online" and select "advanced search". Secondly, enter the name of the environmental law in the "legal basis" field and click search.

Synopsis of the Chinese Local Environmental Laws
As of 1 October, 2018, based on the principles mentioned above, the local people's congresses and governments have enacted 2908 environmental local decrees, local rules, autonomous decrees and special decrees, accounting for  12.7% of the total number of local laws in China. As Table 4 shows, among them, there are 1689 local decrees (58.1%), 986 local rules (33.9%), and 233 autonomous decrees and special decrees (8%).

The Legal Conflicts between the Recently-Revised Environmental Laws and the Lower Administrative Regulations and Rules
Since Xi Jinping took power in 2012, the major environmental laws have been  administrative regulations and rules shall be in harmony with the higher-level environmental laws, which is the basic premise and important guarantee for maintaining the unification of the environmental legal system and promoting the construction of ecological civilization. As stipulated in Legislation Law, environmental administrative regulations and rules should not conflict with the higher-level laws. However, in reality, due to the joint influences of departmental and local protectionism, the one-sided emphasis on economic development, and the lack of environmental concern, some provisions of lower-level environmental administrative regulations and rules conflict with higher-level environmental laws. The judicial statistics data above have shown that a large number of judgments are made following administrative regulations and rules. Those legal conflicts have severely damaged the authority and unity of the environmental legal system, and have serious negative impact on the current environmental protection in China. As Table 5 shows, at least 18 administrative regulations and rules conflict with the five recently-revised environmental laws.

The Legal Conflicts between Environmental Protection Law and the Relevant Administrative Regulations and Rules
Environmental Protection Law was revised on 24 April, 2014, and implemented as of 1 January, 2015. The article finds that one administrative regulations and seven administrative rules conflict with the Law. 1) Regulations on the Administration of the Collection and Use of Sewage Charges. The administrative regulations were approved by the State Council and passed on 30 January, 2002. The primary legal conflict is that Article 45 of Environmental Protection Law establishes a sewage permission system and no longer imposes sewage charges on undocumented sewage, which has abolished the basis of the regulations.
2) The following three administrative rules in the chemical industry: Regulations on Environmental Protection Monitoring in Chemical Industry, which was promulgated by the Ministry of Chemical Industry on 31 October, 1988. Regulations on the Environmental Protection Administration of the Chemical Industry, which was promulgated by the Ministry of Chemical Industry on 21 December, 1990  3) Management Measure for Environmental Protection of Electromagnetic Radiation. The administrative rule was issued on 25 March, 1997. The primary legal conflict is that the fourth chapter of the Management Measures only imposes penalties on the relevant illegal activities of organizations and individuals, such as penalty of not more than 30,000 RMB yuan, correction in particular time, and suspension of production or operation. However, in order to meet the requirements for ecological civilization construction, Environmental Protection Law has expanded the types of punishment for environmental violations and increased the upper limit of penalties. In accordance with the Law, the Management Measures should be revised to increase the types of penalty for illegal activities such as restriction of production, suspension of production for renovation, and to increase the upper limit of penalties. while, the Measure provides many kinds of penalties, such as warning, seizure, revocation of licenses, and confiscation of illegal income, etc., which are not stipulated in the higher-level law. However, according to Article 12 of Administrative Compulsion Law, administrative rules can only formulate specific provisions within the limits of the acts subject to administrative penalty and the types and range of such penalty as prescribed by laws. Thus, those penalties in the Measure conflict with Administrative Compulsion Law.

The Legal Conflicts between Law on Evaluation of Environmental Effects and the Relevant Administrative Regulations and Rules
Law on Evaluation of Environmental Effects was revised on 2 July, 2016, and subject stipulated by Article 14 of the Code is limited to the "evaluation institution", and the responsibility subject stipulated by Article 34 of Law on Evaluation of Environmental Effects is "the staff of the administrative department of environmental protection or any other department", and the latter has a broader scope.

The Legal Conflicts between Law on Prevention and Control of Water Pollution and the Relevant Administrative Regulations and Rules
Law on Prevention and Control of Water Pollution was revised on 27 June, 2017, and implemented from1 January, 2018. The article finds that one administrative regulation and two administrative rules conflict with the Law. March, 2000. The primary legal conflict is that it has been nearly 18 years since the promulgation of the Regulations, during which Law on Prevention and Control of Water Pollution has been revised many times. Therefore, the Regulations has severely lagged behind the Law. It is suggested that the implemental Regulations be revised systematically according to the Law. The first is to add specific and operational provisions on the river chief system and the centralized treatment of rural sewage to enhance the bearing capacity of environmental resources in river basins. The second is to abolish the provisions on the administrative license on water pollution prevention and control facilities and the registration of pollutant discharge. The third is to establish a pollutant discharge licensing system. The fourth is to strengthen the legal liability for illegal activities.

The Legal Conflicts between Law on the Prevention and Control of Atmospheric Pollution and the Relevant Administrative Regulations and Rules
Law on the Prevention and Control of Atmospheric Pollution was revised on 27 June, 2017, and implemented from 1January, 2018. The article finds that one administrative regulations and two administrative rules conflict with the Law. 1) Regulations on the Management of Ozone Depleting Substances. The State Council passed the administrative regulations on 24 March, 2010. The primary legal conflict is that the administrative penalties stipulated in Law on the Prevention and Control of Atmospheric Pollution is inconsistent with that stipulated in the Regulations. The Law stipulates that the competent department of ecology and environment of the people's government at or above the county level shall impose a fine of not less than 100,000 RMB yuan but not more than one million RMB yuan if an enterprise has discharged atmospheric pollutants without lawfully obtaining a pollutant discharge license. However, according to Articles 32 and 33 of the Regulations, the upper limit of the fine on the illegal activity is only 500,000 RMB yuan, only half of that set up by the higher-level law.
Moreover, the types of administrative penalty stipulated in the Regulations are also less than the Law. According to the Regulations, the government can only impose six kinds of administrative penalties on the enterprises that conduct related illegal activities, including fine, order for correction, confiscation of illegal proceeds, verification and reduction of quota, certificate revocation, and demolishing illegal equipment. However, the Law also stipulates three administrative penalties for severe illegal acts, including administrative detention, ordering production suspension for rectification, and ordering business to stop operations or close down.  The main legal conflict between the Measure and Law on the Prevention and Control of Environment Pollution is that, the subjects of the license related to hazardous waste recycling business are inconsistent. Article 2 of the Measure stipulates that entities engaged in the collection, storage and disposal of hazardous wastes shall apply for business licenses. In contrast, Article 57 of the Law stipulates that, in addition to the above-mentioned entities, entities engaged in businesses of utilizing hazardous wastes shall also apply for business licenses.

The Legislative Vacancies and the Legislative Lags of Local Environmental Laws
China has a vast territory and obvious environmental differences. Therefore, the national environmental laws are more principled and lack maneuverability at province and city levels. Moreover, it is difficult to balance the differences in the environment of each region. Therefore, local environmental decrees and rules are designed as supplementary regulations and specific rules for the enforcement of national environmental laws and administrative regulations. National environmental laws and local environmental laws need to coordinate with each other to establish an effective legal system for ecological civilization construction. For example, many environmental laws state clearly that the local government should take responsibility for local environmental quality, but it is a pity that those clues usually exist in name only and could not be implemented very well because that those clause cannot be operational with the blanket of the specific legal liability mechanism in local laws (Sun, 2008). Since the 18 th National Congress of the CPC, several national environmental laws have been revised and stipulated stricter environmental protection standards and legal liabilities.
However, severe legislative lags occur that a large number of local environmental laws have not been revised timely in accordance with the higher-level laws. In addition, many supporting rules and regulations were promulgated too slowly after the higher-level laws' enforcement, waiting a long time instead of simultaneously being implemented with the law. Those legislative lags were apparently not conducive to its functioning well, severely damaging China's environmental legal system (Sun, 2008).  Table 6. What needs to be pointed out is that, according to Legislation Law, a major city refers to a city where the People's Government of the province or autonomous region is seated, the city where a special economic zone is located, and any other major city approved by the State Council.

The Legislative Vacancies and the Legislative Lags of the Implemental Local Laws of the Environmental Comprehensive Laws and Administrative Regulations
The

The Legislative Vacancies and the Legislative Lags of the Implemental Local Laws of the Water Resources and Marine Environmental Protection Laws
The water resources and marine environmental protection laws mainly include   3) Law on Water and Soil Conservation. There are 37 implemental local laws of the Law. The legislative bodies of 30 provincial administrative regions and 7 major cities have promulgated implemental local laws in accordance with the Law, with legislative vacancy rates of 3.2% and 85.7%, respectively. Among them, 24 (37.5%) have lagged behind the final revision of the Law, with an average legislative lag of 3460 days.

The Legislative Vacancies and the Legislative Lags of the Implemental Local Laws of the Wildlife Conservation, Nature Reserves, Scenic Spots Protection Laws and Administrative Regulations
The wildlife conservation, nature reserves, scenic spots protection laws and ad-

The Legislative Vacancies and the Legislative Lags of the Implemental Local Laws of the Energy Conservation and Cleaner Production Laws and Administrative Regulations
The energy conservation and cleaner production laws and administrative regula-

The Legal Conflicts between Local Environmental Protection Legislation and the Higher-Level Laws
The principle that local laws must not conflict with the higher-level laws are one Specifically, the principle of non-conflict includes three sub-principles. Firstly, local environmental laws must not conflict with the specific provisions of the Chinese Constitution, national laws, and administrative regulations. Secondly, local laws must not conflict with the guiding ideology, legislative purposes, basic principles and legislative spirit of the Chinese Constitution, national laws, and administrative regulations. Thirdly, local environmental laws may not stipulate legal reservation matters that should be stipulated by the national laws such as Environmental Protection Law, Criminal Law, Law on Administrative Penalty, etc.
In principle, even if local environmental laws have not been revised, the national environmental laws should be given priority if there is a conflict between the two. However, due to the prevalence of local protectionism, many local courts do not apply the conflict rules of the higher-level laws and lower-level laws in the trial. On the contrary, when the lower law conflicts with the higher law, applying the lower law is usually preferred in reality (Huang, 2016). For example, in April 1999, the General Office of the Standing Committee of the Fujian Provincial People's Congress submitted to the Higher People's Court of Fujian Province the Opinions on Correcting the Unappropriated Approval of Sanming Intermediate People's Court according to Law to apply the lower-level law (Zeng & Huang, 1997 Regulations should be applied and that what the judge did was actually an illegal judicial review of local decrees (Anonymous, 2004). In view of this, the unity of national environmental laws and local environmental laws has become a prominent problem that damages China's environmental legal system.
Through the analysis of 2908 environment-related local decrees, local rules, autonomous decrees and special decrees, it is found in this study that there are serious conflicts between local environmental laws and national environmental laws.

The Prohibitions and Restrictions of the Higher-Level Laws Are Relaxed by the Lower-Level Laws
Due to local protectionism and the priority for economic growth, some local en-

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vironmental laws may allow the eco-unfriendly behaviors that are actually prohibited or restricted by the higher-level environmental laws, so that the legislative objectives of the national laws cannot be realized.
Taking Qinghai province as an example, by comparenational environmental laws, with the local laws such as Regulations on the Protection of Drinkable Water Sources in Qinghai Province, Measure for Implementing Law on the Prevention and Control of Atmospheric Pollution in Qinghai Province, and Measure for Implementing Law on Soil and Water Conservation in Qinghai Province, etc., it is found that the local environmental laws in Qinghai province have the following three main problems. Firstly, the local laws permit the eco-unfriendly behaviors that are prohibited by the higher-level laws. Secondly, the local laws delete some of the prohibited emission types listed in the higher-level laws.
Thirdly, local environmental laws fail to specify the prohibitive provisions of the higher-level laws according to local characteristics.

The Lower-Level Laws Expand the Scope of Administrative Licenses Set Up by the Higher-Level Law
For example, according to Article 44 of Environmental Protection Law, in nationwide, whether the pollution is serious or not, the total discharge volume control system to key pollutants shall be applied; and for areas whose indicators of key pollutants exceed the total discharge volume control or fail to achieve the environmental quality objectives determined by the central government, the environmental protection administrative departments at and above the provincial Hubei Environmental Protection Regulations, on the one hand, narrows the geographical scope of the total discharge volume control system, and confines it to the areas with high industrial concentration and large amount of pollutant discharge. On the other hand, the Regulations establish the so-called temporary discharge licenses for enterprises whose discharge exceeds the permitted scope.
However, the license has no basis of any higher-level law and obviously contradicts Article 45 of Environmental Protection Law that those without a pollutant discharge license may not discharge pollutants.

Inconsistency of Legal Liabilities
The legal liabilities stipulated by local environmental laws are inconsistent with those stipulated by higher-level laws.

Imperfect Local Legislative Mechanism
The Failure of local legislatures to establish perfect local legislation mechanism in accordance with the requirements of higher-level laws is an important reason for the legal conflict.
On the one hand, the functions of local people's congresses is insufficient and blurred. At present, almost all local people's congresses set up special committees on environmental matters to take charge of local environmental legislation.
However, they lack sufficient professionals and the understanding of the actual situation of environmental protection, making them difficult to undertake the legislation alone. Therefore, local departments of ecology and environment often initiate local legislative bills instead of the environmental committees in reality.
As a result, the local people's congresses gradually lost their leading role in local legislation, and their main responsibility is to solicit opinions from all parties.
Moreover, the Lack of independence and professionalism of local people's congresses has made it difficult to coordinate the department of ecology and environment with environmental departments, which may delay the legislative process and even damage the scientific and impartial nature of the legislation.
On the other hand, there is a lack of a mechanism for public participation in local environmental laws. Environment concerns the well-being of every Chinese citizen. Therefore, local legislation should encourage public participation, so that the public can reasonably express their demands through legislative activities, and substantively participate in legislative process. However, public participation in local legislation is faced with the following problems. Firstly, the scope of public participation is narrow and limited to making comments on the drafts or bills. Secondly, the channels for participation are not smooth enough, and the feedback system is deficient. Thirdly, Legislation Law only stipulates the principle of public participation in local environmental laws, and many local legislatures have not yet established the specific participation mechanisms. The above problems lead to the low enthusiasm of public participation in environmental legislation. Hence, public opinions can hardly have a practical impact on local environmental laws.

Suggestions and Conclusion
At present, China's environmental legal system has severe legal conflicts, legislative lags and gaps. As mentioned in this study, at least 18 administrative regulations and rules conflict with the five recently-revised national environmental Fourthly, according to actual conditions, local legislatures should focus on the major problems that urgently need to be resolved by local environmental legislation.
Thirdly, improve the construction of the filing and review mechanism. The article suggests that the first is to strengthen the filing works of the Standing Committee of the NPC and the Ministry of Justice by increasing staff and strengthening professional training. The second is to improve the review mechanism. If a local bill deletes, increases or changes the prohibitions and restricts of higher-level laws, or if the administrative licenses, penalties, compulsory measures of a local law are inconsistent with those of higher-level laws, the local people's congresses and the local governments shall be required to explain the following matters when submitting local legislation for filing: Fourthly, optimize the mechanisms for information disclosure and public participation. Public participation is an important basis for the quality of legislation. However, tensions within the existing system render the environmental functions of information disclosure uncertain, with serious potential consequences-weakened state legitimacy and a hobbled environment (Wang, 2018).
Chapter V of Environmental Protection Law stipulates the information disclosure and public participation. It is suggested that local legislatures should enact specific laws on the public participation mechanism for initiating, drafting, feasibility study, review and post-legislative evaluation to effectively guarantee the authenticity, extensiveness and representativeness of the public participation in environmental legislation. At the same time, local environmental legislation should further expand the scope of environmental information disclosure, and standardize and facilitate the disclosure process. In addition, local environmental laws should make specific and operational provisions to strengthen the responsibility of environmental information disclosure by enterprises, to ensure the public's right to know, participate, supervise.
The environmental challenges in China today are immense, but so are the opportunities for environmental legislative improvement. This study presented a comprehensive analysis of the disharmony in the Chinese environmental legal system. While many researchers worked on the inconsistency in China's environmental legal system, none of them investigated the issue from a holistic perspective. The study is the first one to provide a comprehensive contextual analysis about the current legal conflicts, legislative vacancies and the legislative lags based on the Chinese current environmental legal system including 30 laws, 45 administrative regulations, 85 administrative rules, and 2908 local decrees, local rules, autonomous decrees and special decrees.

Conflicts of Interest
The author declares no conflicts of interest regarding the publication of this paper.