Developing a national contaminated land liability scheme in China: the Comprehensive Environmental Response, Compensation, and Liability Act revisited

Jeffery, Michael I. and Zhao, Xiaobo (2012) Developing a national contaminated land liability scheme in China: the Comprehensive Environmental Response, Compensation, and Liability Act revisited. Journal of Energy and Natural Resources Law, 30 (4). pp. 423-465. ISSN 0264-6811

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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Item Type: Article (Commonwealth Reporting Category C)
Refereed: Yes
Item Status: Live Archive
Additional Information: NOTE: Access restricted. Also available from Hein Online.
Faculty / Department / School: Historic - Faculty of Business and Law - School of Law
Date Deposited: 18 Jan 2015 05:24
Last Modified: 20 Mar 2017 01:00
Uncontrolled Keywords: contaminated land; China; CERCLA; superfund; environmental liability
Fields of Research : 18 Law and Legal Studies > 1801 Law > 180111 Environmental and Natural Resources Law
Socio-Economic Objective: D Environment > 96 Environment > 9607 Environmental Policy, Legislation and Standards > 960799 Environmental Policy, Legislation and Standards not elsewhere classified
Identification Number or DOI: 10.1080/02646811.2012.11435305
URI: http://eprints.usq.edu.au/id/eprint/26515

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