A Legal Analysis of the Mining Ecological Environment

Protection in Shanxi Province in China

PEI Jian-jun YAN Li-hong

Abstract：In the era of economic globalization, the protection of the mining ecological environment in Shanxi Province is faced with even harsher challenges than before. The fundamental reason that Shanxi mining ecological environment is being seriously damaged is due to the lack of sound and effective legal and regulatory controls. Sustainable development has therefore become an urgent matter for the advancement of Shanxi mining economy. We shall view Shanxi mining economy from legal perspectives as well as a scientific development point of view and make sure that the process of the mining economic growth is scientific and legal. Only in this way can the possible ecological and environmental calamities brought about by the development of mining economy be ultimately controlled and avoided in Shanxi Province. To achieve this goal, we shall fully display the function of the legislation of local economy and ecological environment and set up the corresponding rules and regulations in order to provide legal guarantees and promote the sustainable development of Shanxi mining economy by legal means. .

Keywords： Shanxi mining ecological environment; mining economy; sustainable development; legal propulsion

The seriousness of the environmental problems caused by Shanxi mining economy is simply beyond imagination. Their damages to land and houses are only the peak of an iceberg and the essential part are their damages to human ecology, residential environment, water resources and ecological environment etc. or in other words, the destruction of a whole system. The mining economy caused a serious imbalance of benefits. The claim of “rich mineral resources” has hence many other implications as well.

In the economic globalization of the present epoch, China’s mining industry faces more opportunities for development than before and enjoys a brilliant prospect and abundant choices in such aspects as transnational operations, invitations for businesses and investments, extensive enterprise scale, business expansion and development as well as listing of mining enterprises to circulate funds etc. But these advantages can also bring problems to mining economy, like the problems currently existing in such aspects as mining industry taxations, management of mining orders or mining laws, resources exploitation, environmental protection and so on. In particular, the protection of mining ecological environment is an even more outstanding problem than others. As Shanxi is a big mining economy province, to protect its mining ecological environment is even demanding in this scenario. As the development of mining economy involves environmental protection, ecological safety, work security and management of other aspects etc., it needs to proceed in a legal and scientific way. Only in this way can mining economy achieve positive progress. Otherwise it will be buried in calamities. At present, sustainable development has already become an urgent matter for developing Shanxi mining economy, which requires us to view Shanxi mining economy from both legal perspectives and a scientific development point of view and to make sure meanwhile that the process of mining economic development is scientific and legal in order to ultimately control and avoid the possible calamities that Shanxi mining economy will bring about. The legal thinking on the question of Shanxi mining ecological environment made by this paper aims to put forward some suggested policies and laws on the sustainable development of Shanxi mining economy so as to attract the attention of both the government and people of all walks of life to the construction of a legal system to protect Shanxi mining ecological environment.

I. The protection of ecological environment in the course of Shanxi mining economic development

Shanxi is a province that has concentrated mineral resources in China and it is especially famous for its coal and bauxite. The coal resources of Shanxi Province have made huge contributions to China’s economic construction and development since the founding of New China and are still playing an important part in China’s economy today. Or even in the predictable future, the mineral resources of Shanxi province, with coal as its leading resource, will still play an important role in China’s economic and social development. However, in the process of mining economic development for the past many years, quite a number of mining related ecological environment problems were exposed during the exploitation and utilization of the mineral resources in Shanxi province. The major ones are as follows:

1. Low utilization ratio of mining resources: According to the relevant statistic reports, the total percentage of the recovery of mining resources in China is only 30%, 20% lower than the world average level. Because China implements mandatory planning, output, in particular the output of primary products, has been overemphasized during the exploitation of mining resources. As the exploitation of mining resources mainly centers on primary products, the technical structure of the mining products is deficient. Many raw mining resources are being exported because our ability to fine process those resources is low. As mining resources are non-regenerative resources, their low utilization ratio will result in heavy waste of those resources. In addition, the export of the mining products that have not been finely processed will greatly decrease China’s benefits from resources and bring threats to the safety of China’s resources as well. The management and utilization system of mining resources in Shanxi province lags behind any other part in China. The development of its mining economy depends heavily on the trading and exporting of the primary products of its mining resources.

2. Chaotic exploitation of mining resources: the following symptoms exist. As the mining enterprises are each different in their mining technologies and equipment, mining capabilities, mining scale and products processing level etc., the serious problems like “rich mineral resources, poor exploitations”, or “limited mineral resources, unlimited exploitations” occur. According to the system of minimum exploitation scale in mining areas, only when the exploiting scale of a mining enterprise matches the storage of resources in the mining area can intensive mining and scale effect be achieved. Because the large state-owned mining enterprises in China are usually poorly equipped with out-of-date facilities, their production capacity shrinks and their output decreases. Besides those enterprises are generally overstaffed, so their working efficiency is low and their exploitation cost increases dramatically. For all the above reasons, the exploitation market is eventually occupied only by those middle or small-size township enterprises. But the scattered exploiting and processing working manner that the township mining enterprises adopt will inevitably shadow the effect of scale exploitation of resources and obstruct the full and effective excavating of the mining resources, which, as a result, can only lead to the waste of mining resources.

3. Serious damages to ecological environment during the exploitation of mining resources: We can take coal as an example to see what serious damages coal mining has done to ecological environment. Subsidence ground is a major result of the damages that coal mining has done to the earth. Coal mining leads to cavity areas, which will destroy the mechanical balance originally existing inside rock stratum. And rock displacement, distortion and avalanche take place in consequence. After the coal-mining area reaches a certain level, the rock displacement and destruction that have started from nearby the mining area will extend to the earth’s surface causing it to subside. In addition, the houses, railways, pipe facilities within certain scope will also be distorted or destroyed and the nearby soils, rivers or other water systems will be altered as well. It is, nevertheless, impossible to thoroughly get rid of the influences that underground coal mining has on ground subsidence and ecological environment. Research shows that 4.5 – 5.5 mu of ground will subside after each ten thousand tons of coal is excavated and the maximum subsidence depth can reach 10m. If we calculate the current production capacity of a large-size coal mining factory with the above ratio of subsidence per ten thousand tons of excavated coal, we will arrive at the conclusion that there will be ten thousand more mu of ground subsiding each year as the result of coal mining. This figure is quite frightening. Besides during the subsiding process of the coalmine cavity areas, what will be destroyed is not only the ecological environment or the resources on the earth’s surface, but also the coal associated resources and other underground resources (such as ground water, clay, limestone, rudimentary coal bed, etc). What’s more serious is that land subsidence causes damages to ecological system and leads to dramatic adverse changes in the biological environment of the ecological system. The organisms in the system lose their living conditions in consequence. Furthermore, crops can’t grow; animals die out or migrate; microbes disappear; and even people have to move to other places as well. Because of the above reasons, the energy movement and matter circulation in the system are obstructed; the ecological balance is destroyed and the farmland ecological system collapses too.

Meanwhile, gangues are also a big threat to environment. A huge amount of gangues are produced during coal excavation, and the amount of gangues produced is, in China, about 15% - 20% of that of excavated coal. According to the relevant statistic reports, gangue composes a major part of the solid industrial refuses in China. The amount of accumulated solid industrial refuses over the years in China is about 6 billion tons, among which gangues take about 1.2 billion. Each year there are 0.5 – 0.6 billion tons of solid industrial refuses produced in China, among which gangues occupy 0.1 billion. Currently, there are over 800 mountains of gangues in China occupying an area of about 6,000 hectares. The piling up of these waste residues over the years has not only taken a huge amount of land, but also seriously polluted the environment and destroyed the ecological balance. In dry areas or during dry season, the piled-up gangues will give out a huge amount of dust; and in rainy season, the neighboring water system and soils will be polluted by the acid and heavy metals generated after efflorescent gangues are drenched by rains. Spontaneous combustion is another serious problem gangue mountains hide. Research shows that the recycled gangues occupy only 3 – 5% of the total amount produced in Shanxi Province. And to certain degrees, damages to ecological environment also exist during the exploitation of other mining resources.

II. A Legal Analysis of the Protection of Mining Ecological Environment

As pollution will be inevitably generated during the exploitation of mining resources, the protection of mining ecological environment shall therefore become a compulsory part of the mining legal system. The purpose of the legislation is to require individual mine owners to internalize the external price for exploiting and utilizing mining resources. Through the institution of regulations in the legal system, the damages to ecological environment brought about by mining economy can be reduced to their minimum level. The unique characteristics of mining industry require the corresponding mining law to incorporate a strict environmental protection legal system, and the sanctions applied in the system shall be severer than general laws or regulations on environmental protection.

In China, the protection of mining environment is reflected respectively in the Environmental Law and the Mining Law. Having developed for more than 20 years, a systematic legal system of the protection of mining environment has gradually come into being, which can be divided into two levels: laws and administrative regulations. Among them, the Mining Law, the Basic Environmental Protection Law, and the Special Environmental Protection Law all have the corresponding regulations on the protection of mining environment. But as most of these laws and regulations were enacted in the early days and without a complete system, they can no longer meet the requirements of China’s mining economic development while facing the increasingly serious environmental problems caused by the excavation of mining resources. What’s more important is that many rules and regulations in the existing laws on the protection of mining environment can’t match the new values of resources and ecological system. This is reflected in the following aspects:

1.There is a lack of effective rules on the prevention and cure of the pollution in mining areas and on the protection of ecological system, and especially the rules on ecological protection are even scarce. The existing environmental protection law centers only on pollution control, with the control of pollution links and “emission” as its basic structure and contents. It emphasizes on end control rather than source control. Therefore it is singular in function and narrow in application and can’t control pollution and prevent damages to the ecological system fully and effectively. This kind of legal system has obviously not been designed to actively protect the ecological environment and it only passively provides some protections. And it does not stress the protection of the overall environmental benefits but advocates the absolute protection of a single environmental factor.

2. Laws on the prevention and cure of the mining pollution and on the protection of resources are scattered. The various rules on the protection of China’s mining environment are scattered in different laws, which obstructs the formation of a coordinated and unified legal system. The existing protection of the mining environment is basically limited to the prevention and cure of pollutions, separating the protection of resources from environmental control and management. It pays close attention to resources but neglects the environmental protection. In the process of mining industry development, environmental pollution goes abreast with resources waste and they can’t be clearly separated. In accordance with the current legal system, a huge amount of waste will occur during the exploitation and utilization of quite many resources, which does not conform to the requirements of developing a circulated economy.

3. The rewards and penalties system of the existing laws is not adequate. First of all, the compensation for mining damages in the Mineral Resources Law does not cover compensation for ecological damages. According to the terms of responsibility, compensations are effective only for the damages to properties; but the ecological values and functions of the environment have not been taken into consideration. And there is no recovery indemnity system for regaining the ecological balance and ecological regulatory function. The current system can only lead to the outspreading of the costs in pollution treatment, i.e. the pollution generating enterprises will transfer their costs in pollution treatment to society. Secondly, there is no environmental taxation system in China. The environmental taxes currently used in the world are mainly levied on polluting behaviors and polluting industries. The purpose is to let the polluting enterprises reduce their pollutions at their own cost, and to limit the surface exploitation of the mining resources. This type of taxation system is thus quite scientific. The charges for emitted pollutions stipulated in the current China Environmental Law couldn’t effectively control the mining pollution however. The existing charges-for-emitted pollutions regulation is effective only to the “above-standard” pollutions, and the emissions equal to or lower than the stipulated standard will not be charged. In addition, in accordance with the system of charges-for-emitted pollutions, charges are demanded only when the thickness of the emitted pollutants is above certain standard, but the amount of emissions are generally not taken into consideration.

4. There is a lack of international co-operation system, which will make it hard for China to adapt to the advancement of globalization. In 1992, China signed “UN Climatic Changes Framework Convention”, which was approved in 1993. In 1998, China signed “Beijing Protocol”, which was approved in 2002. Although China has already joined a number of international conventions on environmental protection, the specific laws on international cooperation in protecting environment are absent in the existing legal system of environmental protection. As “Beijing Protocol” has already come into effect in Feb. 2005, China will face more and more strict international requirements of environmental protection. Thus the current legal system of mining environmental protection shall also be adapted to this developing tendency. The Chinese government has promised that, following the principle of “undertaking a common but distinctive responsibility”, China will unremittingly implement the scientific development concept for a comprehensive, coordinated and sustainable development, and it will continue to devote itself to the improvement of efficiency in utilizing resources and the development and utilization of new and recycled resources. Under the framework of sustainable development, China will take necessary actions to develop its economy and transform the non-sustainable extravagant way of consumption so as to assure the harmony between economic development and environmental protection. It can be hence easily found that the existing protection system of mining environment no longer meets the above requirements.

Shanxi province has not yet actively and effectively enacted any laws on the protection of mining ecological environment. But it can hardly achieve any effect to mainly depend on the laws and regulations currently existing in China or on a couple of “red-headed” official documents. Besides, there is a lack of regulatory and systematic researches on the establishment of effective international cooperation system.

III. Legal countermeasures to protect Shanxi mining ecological environment

1. The governmental function shall be fully displayed; a strategic planning of mining resources be implemented; and a planning system of mining resources be established.

Although Shanxi Province abounds in mining resources, this abundance will nevertheless cease to exist and some resources may even be exhausted after several decades of years if we continue to inefficiently utilize and excessively excavate our resources. If this happens, the future life of our younger generations living on the same land will be affected, which obviously goes against the requirements of social and economic sustainable development. What’s more serious is that too much damage to the ecological environment took place because of the current state of mining economic development. To some extent, our losses outweigh our gains. Therefore, we must strategically plan the prospecting, exploiting and utilizing of the mining resources in Shanxi province; set up in the meantime a planning system of Shanxi mining resources; and protect it and secure its legal status with local legislation. By so doing, the following effects can be achieved: first, its high-level guidance and strong binding force can be ensured. Secondly, as it is planning law by nature, it has binding force to other local regulations as well. To those local regulations, it plays the role of local economic constitution. Thirdly, the influences on the sustained protection of the local mining ecological environment, which are generated due to the frequent changes in the local government policies, can be avoided and the influences generated by the different development concepts of a new successor from his predecessors of the government can be prevented as well.

2. The function of the legislation of local economy and ecological environment shall be fully displayed so as to specially protect the local mining ecological environment and reform the development of the local mining economy.

As stated before, the uniformed legal system on the protection of the mining ecological environment currently existing in China is not perfect. In addition, the enacting and modifying of laws by the state government are always late. Furthermore these enacted and modified laws can’t meet the special local requirements. The situation that Shanxi province is backward in development and its ecological environment has been seriously damaged is caused by its social, historical and economic reasons over the years. The complexity of the problem embodies the regional characteristics of Shanxi province. Therefore, it is obviously not an advisable way out to simply wait for and depend on the uniformed state legislation or the special cares from the state government. Viewing the experiences accumulated by all countries in the world, we can see that the economic prosperity is usually not possible without the legal propulsion, judging from either a state level or a regional perspective. This nevertheless conforms to the objective rule that the law is part of superstructure. Especially in the present era when the rule by law has become a world tendency, the legal propulsion of the economic development is even significant. Its significance lies in not only the construction of an environment for economic development, but also the establishment of some regulations or systems of the economic development itself, based on which the economy is developed. In the present and future development process, Shanxi province shall develop in an innovative and non-conventional way in order to get rid of its economic backwardness and the serious damages to its ecological environment. To achieve all the above goals, we must accelerate the paces of legislation with original concepts, innovative thinking and novel methods and provide a legal foundation and guarantee for economic development.

According to the provisions of China’s Legislation Law, the People’s Congress and its corresponding Standing Committee of a province or an autonomous region or a municipality directly under the Central Government are allowed to enact local rules or regulations in accordance with the specific situation and actual needs of its own region under the precondition that the enacted rules and regulations do not contradict with the Constitution, or any other state Laws or Administrative rules; and the People’s Congress and its corresponding Standing Committee of a comparatively big city have the similar power too. As for those provisions that have not been exhausted by the Central Government legislation, the local legislation can supplement the corresponding details; as for those parts that have not been covered in the legislation by the Central Government, the relevant local rules or regulations can be enacted first; and as to the local affairs, the corresponding local legislation can be made initially. Thus, we shall make full and good use of the local legislation power to develop the local economy and protect the ecological environment. Viewing those economically developed provinces or administrative regions in China, we can find that they have generally better exercised the local legislation power. Therefore Shanxi Province, taking its current situation into consideration, can also innovatively enact local rules and regulations and courageously and foreseeably make laws in accordance with the provisions of the Constitution and the Legislation Law, so as to achieve the sustainable and high-speed development of Shanxi economy together with its social and ecological environment. The conventional way to develop economy and protect ecological environment by the “red-headed” official documents shall be avoided.

3. The supervising function of the People’s Congress shall be fully displayed and a special mining ecological environmental protection committee be set up in the Standing Committee of the People’s Congress of all levels.

In recent years, the contradiction between the supply of mining resources and the demand of economic development has become more and more outstanding and the mining ecological environmental problems such as the damages to the environment in mining areas and mining safety etc. are increasingly serious. The various economic relations with the prospecting, exploiting and utilizing of mining resources need to be further regulated. Because the mining industry is quite special to Shanxi economic and social development, in which it has been playing a prominent role, and also because the mining ecological environment in Shanxi Province increasingly deteriorates, the protection of the mining ecological environment in Shanxi province must be strengthened and a sustainable mining economy shall be developed. Thus, we shall not only have in place legislation in this respect but also undertake the necessary supervision of its implementation. In order to better carry out the local legislation of mining ecological environmental protection, a special mining ecological environmental protection committee shall be set up in the corresponding Standing Committee of the People’s Congress to provide necessary advice on investigation, research and development planning and also to supervise and audit the execution of legislation. By so doing, the legislative and supervisory role of the People’s Congress can be adequately fulfilled and the shortsighted behaviors of the local governments or their feigned compliance with the Central Government due to their local protectionism be avoided accordingly.

Besides, the following aspects are also important links in the construction of a legal system of mining ecological environmental protection: augment the publicizing of information on mining ecological environmental damages and set up the corresponding mandatory information publicizing system; adopt the grading of ecological environmental protection as a major criterion to assess the achievements of local government officials; construct the legal system by determining the legal attribute of mining resources and establishing a sound market mechanism for mining rights etc.; seek international cooperation systems and attract the participation of outsiders or even international society.

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Introduction to the author:

PEI Jian-jun is a Lecturer of the Law School of Shanxi University of Finance and Economics；

YAN Li-hong is the Vice Dean and Professor of the Law School of Shanxi University of Finance and Economics.