Environmental Legislation

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By Paul Davies and Andrew Westgate

The Supreme People’s Court (SPC), China’s highest judicial body, issued a judicial interpretation on December 26, 2016 which defines 18 types of environmental crimes as “serious environmental pollution” and identifies 13 types of “serious consequences” under China’s criminal law, subject to increased penalties. The report is available here (in Chinese only). Notably, under the SPC’s interpretation, tampering with or falsifying results from environmental monitoring equipment, which previously would have been subject to civil penalties, is now deemed to be a serious crime.  According to Yan Maokun, director of the Supreme People’s Court’s research office, “it’s the first time that falsifying monitoring data is considered a crime, which could lead to more effective deterrence and punishment of such violations.” The interpretations, which took effect on January 1, 2017, appear to confirm predictions that the government will move to strengthen enforcement of environmental law. “The revised Environmental Protection Law allows us to give managers administrative detention if they falsify data, but the new interpretations can do more to deter polluters,” stated Bie Tao, the Deputy Director of the Ministry of Environmental Protection’s Policy and Law Department.

By Alexander Wilhelm and Joachim Grittmann

The Federal Constitutional Court of Germany (FCC) on December 6 ruled that while the phase-out of nuclear energy (enacted in 2011) is in compliance with the constitution, Germany’s energy suppliers which operate nuclear power plants have to be compensated “reasonably”. Although the German legislator is primarily obliged by the court ruling to draw up new provisions by June 2018, energy suppliers have indicated their willingness to start negotiations with the Federal Government.

As a result of the Fukushima accident in March 2011, the legislator enacted fixed end dates for the operation of nuclear power plants in July 2011. It was an extreme reversal considering that the German government, only a few months before, put forth a modified energy policy in which nuclear energy should be prolonged as a “bridging technology” by an average of 12 years for each nuclear power plant. The law of 2010 increased electricity output allowances. Accordingly, energy suppliers challenged the withdrawn prolongation in their constitutional complaints against the recent amendment of the Atomic Energy Act (Atomgesetz). However, they did not object to the fundamental decision in favor of a phase-out of the nuclear energy taken in 2002 (Atomausstieg), nor were energy suppliers able to claim a concrete amount of compensation before the (FCC). Crucially, there was a gap between the guaranteed residual electricity volumes and the short-term operational lifetimes of the plants.