Retrospect and prospect: Public participation in environmental impact assessment in China

With an attempt to improve transparency and public participation, EIA in China has undergone years of institutional construction and practical application. It provides an essential and significant approach for the public to be involved in the process of concretely shaping the meaning of sustainable development in China and making specific development decisions. This article therefore provides an overview of the legal regime of public participation in environmental impact assessment (EIA) in China, evaluates relevant practical experiences, identifies the pros and cons, and sheds light on the prospects for future reforms. Legal doctrinal methodologies are mainly applied in this research. It is observed that the recent EIA legislative reforms in China reflect a tendency towards enhanced public participation for projects that could have a significant environmental impact and a reduction of the unnecessary burden on developers to seek public opinion for projects that only could have a mild or little environmental impact. Regarding the development of statutory laws, the screening of projects is crucial to attaining a balance between scientific and social rationality and integrating environmental protection with economic and social development needs. It is generally commendable for projects that are less controversial to pass the EIA procedure more efficiently, while further participation opportunities are also provided to the public in cases of controversial projects. By highlighting the right to participate of the public that may be affected, the chances of NGOs to participate could be reduced. A detailed discussion is then made from a judicial perspective to provide a practical understanding on how the statutory laws are applied in concrete actual cases in China. The following key questions are answered: the extent of procedural flaws in public participation that could lead to a withdrawal of the EIA decision; the application of administrative licence rules on public participation in EIA; the prospect of public interest litigation on public participation in EIA. Notably, the public interest and minor breaches of the law have been used as reasons to refrain from withdrawing an EIA decision with procedural flaws. Nonetheless, the exceptions should be applied with caution. The strictest and most powerful provision regarding public participation at the approval stage of EIA is the administrative licence rules on the right to a hearing. However, the application of public hearings on projects with a mild environmental impact is excessive. Compared to public interest litigation, traditional judicial review based on individual procedural rights is more reliable and prudent in promoting progressive changes. The finds of this article could greatly contribute to academic discussion on public participation in EIA in China and provide valuable Chinese experiences and lessons for comparative studies.