Developing a National Contaminated Land Liability Scheme in China: the Comprehensive Environmental Response, Compensation, and Liability Act Revisited

Abstract

Land contamination has undermined sustainable development in China in the context of the nation’s environmental, economic and social wellbeing. It is still heavily reliant on general environmental protection legislation to regulate soil- or land-polluting activities and it is becoming increasingly evident that contaminated land issues should be addressed in a more cohesive and equitable national framework. The US Congress enacted the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) in 1980 to regulate remediation and redevelopment of contaminated sites. This ground-breaking legislation delineates a complex and far-reaching liability scheme for various potential responsible parties. However, throughout its history, CERCLA’s defining features imposing ‘strict, joint and several, and retroactive liability’ have been roundly criticised for resulting in limited coverage of claims, curtailment of statutory defences, unfairness to innocent parties and high transaction costs. China has already incorporated several key liability standards, for example strict liability and joint and several liability provisions; however, the regimes developed in both jurisdictions remain problematic and in many cases ineffective. Bearing in mind the lessons learned from CERCLA, this article argues that a more flexible contaminated land liability regime might be appropriate for China. A number of criteria should be considered in the development of China’s nationwide contaminated land legislation, which include: adoption of the ‘polluter pays’ principle; establishment of the ‘retroactive liability’ on a firm legal basis; adoption of joint and several liability; and establishment of ‘state liability’ within China. In particular, the profound social and economic transformation in China must be taken into account in both the design and development of a contaminated land liability regime and this article highlights some of the important issues in this regard.

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Notes on contributors

Michael I Jeffery

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Michael I Jeffery QC is Professor of Environmental Law, University of Western Sydney, Australia, and Adjunct Professor of Law, College of Law and Politics, Wenzhou University, People’s Republic of China. He can be reached at [email protected].

Xiaobo Zhao

Xiaobo Zhao is Lecturer of the Law School, Shanghai University of Finance and Economics. He received his PhD degree from the University of Western Sydney, Australia.